NATURAL LAW AND NATURAL ETHICS

The question was complicated by disagreements over how to define natural law, and how to conceive of human understanding. Essen­tially, though, there were two poles of opinion. The orthodox view throughout the sixteenth and seventeenth centuries was that the law of nature was entirely consistent with the moral law laid down in the Bible. All the peoples of the earth, whether pagan, heathen, or Chris­tian, were bound to obey it as ‘the will of God and divine reason inscribed immediately by God in the hearts of all men; whereby gen­erally they know what is good and evil’. It did not convey the religious precepts essential to salvation, and it was often obscured by the base inclinations of humankind.1 Yet ‘that which is imperfectly written in the minds of men naturally, is perfectly declared by the Law written by the finger of God in tables of stone, i. e. the Ten Commandments, and more fully opened in other parts of Scripture’. The Bible was ‘the Law of Nature in the most legible characters’, and the seventh com­mandment one of ‘God’s Universal Politics’, which ‘belong to every commonwealth in particular to enforce, and see them executed, as well as ethically to private consciences’.2 Some godly authorities even argued that natural law, like the Old Testament, prescribed the death penalty for incest and adultery. This was a rule ‘of common equity. . . according to the law or instinct of nature common to all men’, insisted William Perkins; to deny its universal force, claimed Thomas Cart­wright, was to ‘fight against the light of nature’ (all he was willing to concede was that, depending on mitigating circumstances, the method of execution might be made ‘sharper or softer’).3

This way of reasoning tended to be fairly partial, for it usually began with the biblical proscriptions and then sought support for them elsewhere. In the eighteenth century there were likewise many attempts to prove that monogamy and chastity were enjoined by rea­son and nature. Now, however, most theologians and philosophers attempted to do so more objectively, by first establishing and then referring to supposedly universal concepts such as justice, benevo­lence, and truth. The moral law laid down in scripture hence became only a secondary exemplification of what followed from rational enquiry. This was the method pioneered in England by Locke, Cud – worth, and Cumberland, amongst others, and developed further by most moderate deist and Christian thinkers of the eighteenth century.

The conclusion that unchastity was wrong could be reached in dif­ferent ways. Some were of the opinion that all acts should be judged primarily according to their public and private effects, and that sexual freedom always led to injury.4 But most took the opposite view, that there existed an absolute, natural morality, prior to God’s command or to human laws. In this scheme sexual immorality broke the law of nature irrespective of its context or consequences. Unchastity was intrinsically ‘against reason and truth’, inferred William Wollas­ton.5 It was undeniable, admitted Joseph Butler, that it sometimes (even in ‘some of the most shocking instances’) appeared to cause more happiness than misery – but nevertheless it was always auto­matically and absolutely condemned by our innate moral faculty. Similar deductions were made by Richard Fiddes, Francis Hutcheson, Richard Price, Joseph Priestley, Robert Malthus, and countless lesser thinkers.6[10]

Yet the danger of a purely reasoned approach to morals was that, even when aimed at supporting virtue, it could sometimes lead away from conventional norms.7 Having worked out an entirely rational system of sexual ethics, Hutcheson found himself drawn towards the conclusion that ‘defect of offspring’ would justify married men taking concubines.8 Other moralists, such as Adam Smith and the third Earl of Shaftesbury, developed the classical ethos that the distinction between permissible and impermissible sexual behaviour was essen­tially one of degree, involving the avoidance of overindulgence, rather than a restriction to certain types of relationship. In the case of ‘the passion by which Nature unites the two sexes’, explained Smith, ‘all strong expressions of it are upon every occasion indecent’, irrespect­ive of whether a couple be married or not. Shaftesbury, for his part, simply advised his readers that just as ‘laughter provoked by titilla – tion grows an excessive pain’, so sex was pleasureable in moderation but in ‘excess. . . occasions disorder and unhappiness’. Such views were not necessarily intended to promote sexual freedom: but they did place the definition of chastity on a looser footing than before.9 As we shall see in Chapter 4 (‘Polygamy and Population’), a similar risk attached to the growing vogue for considering sexual ethics from the perspective of demographic and economic theory. It even became con­ventional to concede, as Malthus put it in 1803, ‘that there have been some irregular connections with women which have added to the happiness of both parties, and have injured no one’, a notion that earlier commentators would have found inconceivable.10

The impact of such ethical open-mindedness gradually affected even the highest ranks of the clergy. In the eighteenth century it accordingly became possible for one of the leaders of the Church of Scotland to write a treatise seriously commending ‘a much more free commerce of the sexes’. By that, the Reverend Robert Wallace meant complete liberty for both men and women to cohabit successively with as many partners as they liked, and an end to spurious notions of female delicacy – for ‘a woman’s being enjoyed by a dozen in proper circumstances can never render her less fit or agreeable to a thir- teenth’.11 Less intellectually innovative but equally striking was the relaxed position apparently adopted by George Il’s Archbishop of York, Lancelot Blackburne. ‘I often dined with him,’ reported Horace Walpole,

his mistress Mrs Cruwys sat at the head of the table, and Hayter, his natural son by another woman, and very much like him, at the bottom. . . One story I recollect, which showed how much he was a man of this world, and which the Queen herself repeated to my father. On the King’s last journey to Hano­ver, before Lady Yarmouth [the king’s mistress] came over, the Archbishop being with her Majesty, said to her, ‘Madam, I have been with your minister Walpole, and he tells me, that you are a wise woman, and do not mind your husband’s having a mistress’.12

It is difficult to imagine a similar account being given of any Protest­ant bishop before 1700.13 And here is another clergyman, the Reverend Charles de Guiffardiere, later to become a great favourite of George

III and his family, boasting about his latest affair and advising a young man on the irrelevance of the Bible to modern sexual ethics:

Believe me, our hearts’ morality is the only morality we have to lead us, and that disgusting mass of precepts that people no longer read, that derive from I know not what absurd principles, is made only for those gross and clumsy souls incapable of ever attaining to that delicacy of taste which enables a well-born soul to feel all that is lovable in virtue and hateful in vice, inde­pendently of the ridiculous reasons advanced by our sages. . . Above all, devote yourself to women.14

The rise of such attitudes also illustrates the emergence of the opposite view of natural law. This was the notion that sexual laissez- faire was normal, and the rules of chastity artificial. The idea itself was hardly new, for the Christian view of lust as an expression of human sinfulness strongly implied it. The difference lay in the increas­ing valuation of carnal appetite over restraint. In its most extreme form, this approach turned on its head the orthodox connection between Christianity and morality. Radical deists and free-thinkers asserted that organized religion did not teach virtue but concealed it. God’s real laws were simple and rational, not mysterious, laid down in nature not scripture. It was only priests and rulers who had imposed the complicated rituals and superstitions that prevented people from apprehending moral truth and ‘natural religion’ for themselves. Hav­ing spent years in ‘much and serious reasonings and ponderings’ about the basis of religion, wrote the Edinburgh student Thomas Aikenhead in 1697, shortly before his execution for blasphemy, it seemed to him inescapable that ‘a great part of morality (if not all)’ was of merely human invention. In truth, ‘anything may be morally evil, and anything good also; and consequently anything may be decent or indecent, moral or immoral’.15 Similar views became cur­rent also amongst educated Englishmen. As a young man at the Inns of Court, John Bowes, later Lord Chancellor of Ireland, was not alone in urging his friends that Christianity was but a dubious and made-up set of doctrines, and that the natural purpose of women was ‘to be subservient to a man’s lust’. Most of his male readers, concurred Dan­iel Defoe, regarded monogamy as ‘a mere church imposition, a piece of priestcraft, and unreasonable’. ‘If we observe the discourse of our professed debauchees’, noted a philosopher in 1725, ‘we shall find their vices clothed, in their imaginations, with some amiable dress of liberty, generosity, just resentment against the contrivers of artful rules to enslave men, and rob them of their pleasures.’16

This type of interpretation had some basis in the great seventeenth – century debates about the state of nature and the foundations of civil society. One of Hobbes’s notorious exemplifications of temporal sov­ereignty was that, whilst adultery was forbidden by natural law, only human rules could determine what exactly this meant. How the crime was defined thus varied tremendously from culture to culture – so that ‘copulation which in one city is matrimony, in another will be judged adultery’.17 The Restoration judge Sir John Vaughan, a close friend of Hobbes, Selden, and Matthew Hale, went further still in arguing that there was no morality in nature. ‘So no copulation of any man with any woman, nor an effect of that copulation by generation, can be said unnatural’: it was only custom and tradition that made it so.18 Similar conclusions could be drawn from Spinoza’s moral phil­osophy.19 Even Locke himself in private concluded that for a man to cohabit and have children with one or more women, without mar­riage, was by the law of nature an intrinsically innocent action, only rendered ‘a vice of deep dye’ by the rules and customs of society.20

During the succession crisis of the 1670s and 1680s the political implications of the idea were pursued by some supporters of Charles Il’s illegitimate son, the Duke of Monmouth. (Many Protestants would have preferred him to inherit the throne rather than the Catholic James, Duke of York (later James II).) The Whig lawyer William Law­rence published a lengthy collection of arguments from nature, reason, history, and divinity, to prove that all existing marital laws were but pernicious clerical inventions; that the very concept of illegitimacy contradicted divine and natural law; and that, by the same standards, sexual intercourse between unmarried persons was not fornication but the purest form of ‘private marriage’, to choose which ‘all persons ought to be left liberty of conscience’.[11] It was opinions such as these that were famously satirized by John Dryden in 1681, in the opening lines of his poem ‘Absalom and Achitophel’:

In pious times, e’r priestcraft did begin,

Before polygamy was made a sin;

When man, on many, multiply’d his kind,

E’r one to one was, cursedly, confined:

When nature prompted, and no law deny’d Promiscuous use of concubine and bride.21

Further support for the idea that marriage and chastity were merely invented traditions came from the cultural relativism that was becom­ing increasingly fashionable in radical theological discussion. It was not hard to infer from the multiplicity of religions in the world, and their contradictory ethical precepts, that ultimately there were no objective standards of good and evil, or right and wrong behaviour. ‘Virtue?’ exclaims a character in one of Vanbrugh’s plays, caricaturing such modish views, ‘virtue alas is no more like the thing that’s called so, than ’tis like vice it self. Virtue consists in goodness, honour, grati­tude, sincerity, and pity; and not in peevish, snarling, straight-laced chastity’.22 There was no inherent goodness in sexual continence, merely artifice. Even the presumption that one should not copulate in public, suggested Bayle mischievously, seemed to be based only on ‘the arbitrary yoke of customs, and. . . opinion’.23

In the eighteenth century, fresh discoveries of the sexual freedoms apparently enjoyed by overseas civilizations lent increasing empirical support to such ideas; as did the widespread adoption of theories of societal development, in which the variation and refinement of sexual mores was often a central theme.24 As the British Empire expanded across North America and Asia, and the great voyages of James Cook and others traversed the far east and the Pacific, the sexual customs of Native Americans, Indian tribes, and Pacific islanders were all to be catalogued with increasing fascination.[12] Yet already in the later sev­enteenth century the same kind of anthropological approach had helped to raise the status of alternative, non-Christian moral philoso­phies, and advance the idea of the artificiality of virtue. The celebration of natural appetites and of divine benevolence in Epicurus and Lucre­tius, for example, which provided a powerful validation of sexual freedom, became increasingly influential in English writing at pre­cisely this time.[13]

These various ways of justifying sexual liberty were enthusiastic­ally, if not always very coherently, taken up by the sexual libertines of the Restoration (as we shall also see in the next chapter). Charles II ‘could not think God would make a man miserable only for taking a little pleasure out of the way’. Sexual continence was merely the prod­uct of ‘humour or vanity’: no one was chaste ‘out of principle’. Likewise, the whole moral philosophy of John Wilmot, Earl of Rochester, could be summed up in two maxims: that he should do nothing to injure himself, or to hurt another person. Immorality, he argued, was no offence to God, for He was too great to hate His crea­tures, or to punish them: ‘he could not think so good a Being as the Deity would make him miserable’. Nor did he believe in hell (a sanc­tion ‘too extreme to be inflicted for sin’). Religion was no more than ‘the jugglings of priests’; the Bible and its miracles were but incoher­ent and unbelievable stories; Christian morality was only hypocrisy, obeyed by ‘the rabble world’ because they knew no better. It was absurd to think that humans were fallen, that ‘there should be any corruption in the nature of man’, or that reason was meant to restrain our physical instincts – the only true ‘rules of good and ill’ were those provided by our bodily senses, the only real purpose of life, to pursue happiness. It followed that the ideas of monogamy and chastity were ‘unreasonable impositions on the freedom of mankind’. On the con­trary, sexual pleasure ‘was to be indulged as the gratification of our natural appetites. It seemed unreasonable to imagine these were put into a man only to be restrained, or curbed to such a narrowness’.[14]

Before 1700 the association of such arguments with irreligion and debauchery made it easier for orthodox moralists to dismiss them as specious sophistry. They were but ‘many a lame excuse’; the disin­genuous fabrications of men who ‘having their appetites unbridled. . . are resolved to pursue them whithersoever they go; and invent the best arguments they can to defend them’; their reasoning was inevit­ably ‘prejudiced, biased, and bribed’, for ‘this is the influence which adultery, fornication, and all sensual uncleanness naturally have on the mind’.27 There was some truth to these charges. Compared with the rigour of traditional morality, early attempts to defend sexual freedom often seem sloppy and inconsistent, the product as much of social and intellectual posturing as of serious thought. As a satirist observed in 1675, the modern libertine, who ‘denies there is any essen­tial difference betwixt good and evil’, pretended that he was following the doctrines of Leviathan – ‘yet he never saw it in his life’ and had no idea what Hobbes’s book really was about.28

Yet in the early eighteenth century essentially the same views came to be articulated with much greater cogency and dispassion. Though the inference of sexual freedom remained controversial, the under­lying ways of thinking about nature, reason, and custom were becoming much less contentious.29 Both grew familiar enough to be parodied by the leading novelists of the age. Samuel Richardson’s anti-hero Lovelace is taken by the logic of annual marriage and divorce, which would obviate all adultery and fornication. In Field­ing’s Tom Jones, the deist philosopher Mr Square, when exposed as a lustful fornicator, seeks to persuade the protagonist that in fact no harm has been done: ‘Fitness is governed by the nature of things, and not by customs, forms, or municipal laws. Nothing is, indeed, unfit which is not unnatural.’ ‘“Right!” ’ cries Jones, ‘“What can be more innocent than the indulgence of a natural appetite? Or what more laudable than the propagation of our species?” ’ Exactly, replies Mr Square.30

In serious writing, too, the idea was now often advanced as part of a more general philosophical scheme. Matthew Tindal’s masterpiece of deist reasoning, Christianity as Old as the Creation (1730), ridi­culed Christian sexual norms as priestly contrivances, no more appropriate to a modern state than the biblical injunctions against usury or the eating of blood. Actions could only truly be judged by their tendency to promote human felicity:

Enjoying a woman, or lusting after her, can’t be said, without considering the circumstances, to be either good, or evil; that warm desire, which is implanted in human nature, can’t be criminal, when perused after such a manner, as tends most to promote the happiness of the parties; and to propagate and preserve the species.31

The aim of Christ himself, agreed a contemporary philosophe, had really been to deliver mankind ‘from the curse of the Laws of Moses’. He had judged adultery a harmless action, ‘what all men continually commit, in thought, or deed’. Though perverted by the church, Jesus’s own teachings had instead aimed to restore the laws of nature, such as were found in all happy, innocent societies where ‘women, and all other things, were in common’. In fact, goodness and happiness con­sisted primarily in gratifying nature’s appetites: ‘when hungry, of food; when thirsty, of drink; when they are stimulated with the motions of concupiscence, they require coition’ – it was but ‘the vul­gar opinion’ that there was any such thing as ‘good and bad morals’, in sexual or in other affairs.32

The physician and philosopher Bernard Mandeville similarly argued in 1714 that the classification of moral good and evil in all ages was merely the imposition of cunning politicians. So-called vir­tue was always ‘contrary to the impulse of Nature’; it was only the artificial rules of religion and society that sought to stigmatize lust as odious, to stifle its expression, to deny its force, and to ensure ‘that women should linger, waste, and die, rather than relieve themselves in an unlawful manner’. Sexual freedom, urged a popular writer in 1749, was in fact one of ‘the rights of human nature, and the righteous liber­ties of mankind. . . the nature and proneness of men and women to embrace each other, is so fitted and disposed as God will have it, and gratifying the appetites and desires they have in common, tends to their common good’. So there was nothing wrong in unmarried people having sex, begetting children, and living together; in allowing public prostitution; or in permitting men and women to divorce and marry others whenever they wished. The same attitude can be found amongst the Enlightenment’s early advocates of a more reasoned approach to crime and punishment. Sexual passion between the sexes, said Cesare Beccaria, was an unstoppable force of nature. Adultery sprang from ‘a natural necessity’; it did not ‘tend to the destruction of society’; it was pointless and pernicious to penalize it.33

The most ambitious synthesis to emerge out of the seventeenth – and eighteenth-century controversy about nature and morality was David Hume’s interpretation of sexual mores, first presented in A Treatise of Human Nature (1739-40), and refined in An Enquiry Concerning the Principles of Morals (1751). Hume’s initial view was that human beings did have an innate moral sensibility, from which derived cer­tain natural virtues, but that chastity was not included – ‘confinement of the appetite is not natural’. On the contrary, lust usually had ‘a strong connection with all the agreeable emotions’, whilst chastity was merely an artificial virtue, invented primarily for men to feel secure that ‘their children. . . are really their own’.3 4 The Enquiry went further, taking up the standard libertarian theme of the great diversity of sexual norms in different societies. Hume’s contribution was to develop the by now conventional insight that moral distinc­tions were the product of custom and interest into a more systematic account of how divergent sexual codes in fact all shared a common rationality. The deeper truth was that ‘the principles upon which men reason in morals are always the same; though the conclusions which they draw are often very different’. He himself, though disparaging of polygamy and divorce, shared the fashionable view that ‘libertine love’, or even adultery, was less odious or pernicious than, say, drunk­enness.35

By 1750 there had thus emerged a fairly well-developed doctrine of sexual liberty – not merely a rejection of existing laws, but a new way of conceiving of the boundaries between permissible and impermis­sible behaviour, derived from different premises. It usually relied, implicitly or explicitly, on two main qualifications. The first was that the behaviour was natural (and, it usually followed, harmless to the individual). In reality this was, of course, not an objective but a cul­turally determined definition. Conduct deemed to be ‘unnatural’, such as sodomy or masturbation, did not meet its test, з 6 but otherwise what one did with one’s own body was a private matter. It is no coin­cidence that many of the late seventeenth – and early eighteenth-century writers who advocated greater sexual freedom also defended the right to suicide, on similar grounds of personal liberty.37

On the other hand, sexual liberty could evidently affect others. The second criterion was consequently that the act did not seriously harm the public good, or at the very least caused less harm than good. This was to be judged not, as in the past, against an absolute standard, but in the light of its circumstances and effects. The argument that infidel­ity was harmless to others as long as it was kept secret, for example, though hardly original, was increasingly discussed.38[15] It likewise came to be presumed that the sexual rules of any society derived from its collective judgement of ‘public conveniency’. Because cultures, indeed individuals, differed for many legitimate reasons in their per­ception of ‘common interest and utility’, they had different sexual norms. The implication of this way of thinking was twofold. It cre­ated a much sharper division between private and public spheres of life than had been conventional in earlier times. Yet it also raised dif­ficult questions about the exact definition and relationship of the two. The crux of the matter, as Hume rightly pointed out, was that there would always be a tension between the twin aims of modern, secular morality – the maximizing of personal pleasure, and the pursuit of social utility. In sexual affairs ‘these ends are both good, and are some­what difficult to reconcile; nor need we be surprised, if the customs of nations incline too much, sometimes to the one side, sometimes to the other’. Ultimately, and paradoxically, sexual appetite was both the basis of civilization – ‘the first and original principle of human soci­ety’ – and an ever-present threat to social bonds.39

The overall effect was nonetheless to strengthen the presumption that sex was primarily a private matter. It bolstered the view of those who engaged in unchastity, like the fourth Earl of Sandwich, that others should ‘forgive my weaknesses, when they do not interfere with my conduct as a public man’. ‘Public conduct’ and ‘private character’, it could now be argued, were two ‘distinct, irrelative things’.40 The main question became where to draw the line between them. By the later eighteenth century this distinction, although never

unquestioned, had become a key doctrine of public policy. It remained so throughout the nineteenth and twentieth centuries, and it under­pins our thinking still. Though the precise boundaries of the public and the private have constantly fluctuated, this was the chief founda­tion of most subsequent defences of sexual freedom. Even the most ambitious later theorists of liberty tended to maintain that immoral acts stopped being private and became culpable if they affected others. As John Stuart Mill was to conceive of it, the freedom of the individ­ual extended absolutely to fornication – though perhaps not to trading in it, and certainly not to performing it in public. But the basic point was ‘that what any persons may freely do with respect to sexual rela­tions should be deemed to be an unimportant and purely private matter, which concerns no one but themselves’. It was his fervent hope, he recorded in 1854, that to hold men and women to public account for such things ‘will one day be thought one of the supersti­tions and barbarisms of the infancy of the human race’.41